Jones v. St. Louis, Missouri city of et al

Filing 102

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendant City of St. Louis, Missouris Motion for Summary Judgment, (ECF No. 85 ), is GRANTED, and Plaintiff Keith Joness Third Amended Complaint, (ECF No. 79 ), is DISMISSED WITH PREJUDICE. A separate Judgment will accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 5/11/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEITH JONES,

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Plaintiff,
vs.
CITY OF ST. LOUIS, et al.,
Defendants.

Case No. 4:12CV831 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Defendant City of St. Louis, Missouri’s (the “City”)
Motion for Summary Judgment. (ECF No. 85). The Motion has been fully briefed and is ready
for disposition.
“Plaintiff [Keith Jones] is currently and has been an Electrician employed by the City in
the Facilities Management Division of the Board of Public Services (“BPS”) at all relevant
times . . . .” (City Statement of Facts, “CSF,” ECF No. 85-2, ¶ 1). On July 27, 2009, Jones filed a
Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”),
“claiming that he was charged with stealing time, written up and threatened with discharge, that
his disability status was brought up at the hearing, and that he was written up on February 23,
2009 due to job performance.” Id. ¶ 11. These actions, Jones claimed in the Charge, were taken
due to his race and disability. (First Charge, ECF No. 85-11). “[Jones] filed an amended charge
of discrimination on March 5, 2010 (“2010 Charge”) alleging race and disability discrimination,
claiming that that [sic] he received a low evaluation, his pay was reduced, and his doctor’s note
was not accepted . . . .” (CFS ¶ 13).

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Jones initiated this action by filing a complaint on May 9, 2012. (ECF No. 1). That
complaint was dismissed without prejudice, and Jones was given leave to file an amended
complaint. (First Dismissal, ECF No. 16). Jones then filed his First Amended Complaint. (ECF
No. 18). Jones’s First Amended Complaint was also dismissed, and he was given leave to file a
second amended complaint, which he did. (Second Dismissal, ECF No. 36; 2d Amd. Cmplt.,
ECF No. 43).
Jones’s Second Amended Complaint contained claims for harassment, racial
discrimination, and unlawful retaliation. Id. These claims were brought under Title VII of the
Civil Rights Act of 1964 and 42 U.S.C. § 1983. Id. The Court ultimately dismissed all claims
contained in the Second Amended Complaint, this time without leave to amend. (Third
Dismissal, ECF No. 63). Jones appealed that order. (ECF No. 65). The Eighth Circuit affirmed
the dismissal of Jones’s § 1983 claims and harassment claims. (Appellate Opinion, ECF No. 69,
at 3). It also reversed the dismissal of Jones’s Title VII racial discrimination and retaliation
claims. Id. at 4.
After the Eighth Circuit issued its reversal, Jones filed a third amended complaint (the
“Complaint”) with leave of the Court. (3d Amd. Cmplt., ECF No. 79). The Complaint contains
three counts, each of which contains various distinct claims of racial discrimination under Title
VII.1 The City seeks summary judgment in its favor on all counts.

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Jones also included retaliation claims in two of the counts in his Complaint. (3d Amd. Cmplt. ¶¶ 13, 20).
The City contends in its summary judgment motion that these claims should be dismissed because they
were not raised in either EEOC charge. (City Support Memo, ECF No. 85-1, at 3). Jones agrees. (Jones
Response, ECF No. 97, at 4 (“Plaintiff did not in his charges of discrimination allege retaliation.”). The
Court will therefore treat the retaliation claims as abandoned and discuss only the claims of racial
discrimination.

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SUMMARY JUDGMENT STANDARD
Under the Federal Rules of Civil Procedure, courts must “grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Relevant substantive law determines
“which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude summary judgment.” Id.
DISCUSSION
Jones provides only indirect evidence for each claim of racial discrimination. The Court
therefore employs for its analysis the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), which involves three steps. First, Jones must
establish a prima facie case of race discrimination by demonstrating that “(1) he is a member of a
protected class; (2) he met the legitimate expectations of his employer; (3) he suffered an adverse
employment action; and (4) similarly situated employees that were not members of the protected
class were treated differently.” Philip v. Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005). If
Jones makes a prima facie case, the onus is placed on the City “to establish a legitimate,
nondiscriminatory reason for taking the allegedly discriminatory action.” Humphries v. Pulakski
Cnty. Special Sch. Dist., 580 F.3d 688, 692-92 (8th Cir. 2009) (quoting Hammer v. Ashcroft, 383
F.3d 722, 724 (8th Cir. 2004)). If the City is able to do so, the burden shifts back to Jones to
demonstrate that the City’s reasoning is merely pretextual and that he was, in fact, “the victim of
intentional discrimination.” Dixon v. Pulaski Cnty. Sch. Dist., 578 F.3d 862, 868 (8th Cir. 2009)
(quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

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A. Count I
The three counts in Jones’s Complaint involve distinct discriminatory actions, each with
its own set of relevant facts. The facts material to Count I are not disputed. “On December 24,
2008, the City Fire Department’s Engine House #30 lost power from 1630 (4:30 p.m.) to 1730
(5:30 p.m.)[,]” and Jones responded to the problem. (CSF ¶¶ 19, 20). Paperwork relevant to that
call seemed to indicate that Jones had responded to the call on December 23 rather than
December 24. Id. ¶¶ 20, 23, 24. Based on that discrepancy, Marjorie Melton, the President of
BPS, (CSF ¶ 2), initiated an investigation into whether Jones should be terminated. See id. ¶¶ 27,
28. Melton ultimately decided “that termination was not warranted because there was not enough
evidence that [Jones] deliberately falsified records or failed to respond to the call-back.” Id. ¶ 28.
Melton did, however, authorize “a written reprimand.” Id. ¶ 29.
Jones contends in Count I that these actions constituted racial discrimination under Title
VII. Specifically, he alleges that the following amounted to discriminatory actions: (1) that
Melton sought to discharge Jones; (2) that, through Jones’s supervisor Richard Sellars, she
issued him a written reprimand; (3) that Sellars “threatened to discipline” Jones for failing to
sign the written reprimand; (4) that the mental anguish from this episode caused Jones to take
approximately four months of leave; and (5) that, upon returning to work, Sellars refused to
accept a written release from Jones’s health care provider that Jones was ready to return to work.
(3d Amd. Cmplt. ¶¶ 9-11).
The City contends, in part, that Jones has failed to make out a prima facie case of
discrimination in Count I because there is no evidence that Jones suffered an adverse
employment action. (City Support Memo, ECF No. 85-1, at 8-9). Jones responds that the written
reprimand and threatened termination amounted to an adverse employment action because those

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actions “so traumatized Jones that he went on sick leave . . . .” (Jones Response, ECF No. 97, at
5). This resulted in a reduction in his accrued sick leave and, since City employees are paid upon
retirement for unused sick leave, a reduction in the pay Jones would have received upon retiring.
Id.
Jones’s contention must fail because it is contrary to Eighth Circuit precedent. “An
adverse employment action is defined as a tangible change in working conditions that produces a
material employment disadvantage, including but not limited to, termination, cuts in pay or
benefits, and changes that affect an employee’s future career prospects, as well as circumstances
amounting to a constructive discharge.” Jackman v. Fifth Judicial Dist. Dep’t of Corr. Serv., 728
F.3d 800, 804 (8th Cir. 2013). This definition does not include “minor changes in duties or
working conditions, even unpalatable or unwelcome ones, which cause no materially significant
disadvantage . . . .” Id. The Jackman plaintiff argued “that the depletion of her sick leave
constitute[d] an adverse employment action.” Id. at 805. Applying the general definition set out
above, the Eighth Circuit disagreed, finding that use by the plaintiff of “favorable employment
benefits” does not amount to an adverse employment action under Title VII.
Jackman precludes a finding that Jones’s use of paid sick leave constitutes adverse
employment action by the City. The City provided Jones a favorable employment benefit, and
Jones took advantage of it. This does not in any way amount to a cut in benefits, even if it means
Jones will not receive money for unused benefits upon retirement. It simply means Jones
received the benefit in one way instead of another. Jones’s contention therefore must fail.
Jones also contends that he suffered an adverse employment action in relation to the
charges in Count I because the City refused to accept a return-to-work statement from Jones’s
physician when he attempted to return from sick leave. Jones has presented no precedent in

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support of this claim, and he has made no attempt to explain how the refusal of a doctor’s note
itself materially affected any condition of his employment. (See Jones Response at 6). Nor has he
presented any evidence of harm resulting from the City’s refusal of his July 2009 doctor’s note. 2
See id. Due to the lack of evidence that Jones suffered an adverse employment action in relation
to the allegations in Count I, he has failed to make out a prima facie case on that count. The City
is therefore entitled to summary judgment on Count I of Jones’s Complaint.
B. Count II
Count II involves a disputed series of events which undisputedly resulted in Jones
receiving a temporary pay reduction. According to the City, Jones was performing inadequately
in several ways for the rating period ending June 6, 2009. (CSF ¶¶ 59-62). The City presented in
its statement of facts several specific instances on this inadequate performance. Id. ¶¶ 52-57.
While Jones disputes the facts underlying these instances, (see generally Jones Affidavit, ECF
No. 97-2), the City maintains that they collectively resulted in Jones’s performance rating of
“Unsuccessful.” See id. ¶¶ 59-62. They also resulted in Jones’s placement on a 13-week
Mandatory Improvement Plan (“MIP”), id. ¶ 63, which in turn resulted in a temporary pay
reduction.
The parties’ dispute regarding the allegations in Count II has two components. The first is
a dispute over whether Jones was performing his job in a satisfactory manner. The second is
whether similarly-situated white employees were treated differently for infractions similar to the
ones the City contends Jones committed. These two disputes relate to all three steps of the
McDonnell Douglas framework. The dispute over Jones’s job performance relates both the
“meeting expectations” element of the prima facie case and to the “legitimate reason” step, since
Jones has suggested that the City’s refusal to accept a doctor’s note after a separate absence in 2010
resulted in a loss of overtime pay. (Jones Response at 6). But he cites only a paragraph of his Complaint
in support of this proposition, and it does not in any way relate to the City’s 2009 refusal.
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the reason for discipline proffered by the City is that Jones’s job performance was deficient. The
dispute over whether Jones has sufficiently demonstrated the City’s different treatment of
similarly-situated white employees relates both to the fourth prong of the prima facie case and to
Jones’s contention that the City’s proffered explanation is pretext for discrimination.
Jones has met his burden as to the first and third prongs of his prima facie case by
presenting evidence that he is black and that he received a temporary pay reduction. As to the
third element, Jones has presented evidence that he is a long-time employee of the City; that he
received college and professional training as an electrician; and that he has received
commendations from the mayor, including one in 2012. (Jones Affidavit ¶¶ 2, 3, 4, 7). This is
sufficient under Eighth Circuit Precedent. See, e.g., Riley v. Lance, Inc., 518 F.3d 996, 1001 (8th
Cir. 2008) (“Since he had been performing the DAM job successfully for years, he met [the
second prong] of the prima facie case.”); Davenport v. Riverview Gardens Sch. Dist., 30 F.3d
940, 944 (8th Cir. 1994) (finding the second prong satisfied because plaintiff “had held [the job]
for several years”).
To satisfy the fourth element, that a similarly-situated employee not of the protected class
was treated differently, Jones must present evidence that he and the proposed comparators are
“similarly situated in all relevant respects.” Meyers v. Ford Motor Co., 659 F.2d 91, 94 (8th Cir.
1981). “What is relevant (in determining whether employees are similarly situated) is that two
employees are involved in or accused of the same offense and are disciplined in different ways.”
Boner v. Bd. of Comm’rs of Little Rock Mun. Water Works, 674 F.2d 693, 697 (8th Cir. 1982)
(internal quotation marks omitted).3

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As several other courts have pointed out, there was at one time two lines of cases in the Eighth Circuit
regarding the standard to be applied at the prima facie stage for determining whether other employees are
similarly situated. Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 851 (8th Cir. 2005). This conflict was settled
in Chappell v. Bilco Co., 675 F.3d 1110 (8th Cir. 2012). Following the Eighth Circuit’s en banc holding

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The City accused Jones of five separate failings for the rating period that ended on June
6, 2009. The first alleged failing was the December 24, 2008 Fire Engine House # 30 incident
discussed in Count I. (CSF ¶ 59). The second was that Jones “received a call from the emergency
customer service line reporting loss of heat at Engine House 26 while on call at approximately
10:45 pm. [sic] on December 21, 2008.” Id. ¶ 52. The City claims Jones called the on-call HVAC
mechanic in relation to that emergency call but did not speak with the HVAC mechanic until
“approximately 3:30 a.m. on December 22, 2008.” Id. Jones’s third alleged failing was that he
“received an assignment to shut down power to the elevators at the Gateway Transportation
Center building” and wound up shutting off power to the entire building instead of just the
elevators. Id. ¶ 53. Fourth, “[o]n December 24, 2008 [Jones] did not test the Fire Department’s
generator at 7:00 a.m. as required by an agreement between Facilities Management and the Fire
Department.” Id. ¶ 54. Finally, the City claims Jones “failed to properly wire a compressor at the
Municipal Garage, causing it not to function in 2009.” Id. ¶ 57. It was these alleged failures that
served as the basis for Jones’s “unsuccessful” performance ratings in several categories and
ultimately led to his placement on the MIP. Id. ¶¶ 59-63.
Jones suggests that the failings of two white employees compare favorably with the
City’s accusations against him and that the City’s failure to discipline those employees means he
has satisfied the fourth element of his prima facie case. Jones alleges that the first employee,
Randy Luber, was an HVAC mechanic who “repeatedly failed to respond to calls while serving
on-call duty” but was not disciplined. (Jones Response at 9). The second, Anto Kresic, “failed,
after weeks, to troubleshoot and correct a problem with outdoor lighting at the Gateway

in Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) that the earliest panel opinion
controls in case of conflict, the Chappell court applied the Eighth Circuit’s first articulation of the prima
facie “similarly situated” standard, which was the articulation in Meyers. Chappell, 675 F.3d at 1118.
This is the standard used here.

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Transportation Center.” Id. at 11. Jones points to no other details that would be relevant at this
stage of the analysis.
Based on the evidence Jones has put forth, neither Kresic nor Luber is an adequate
comparator for purposes of establishing a prima facie case of discrimination. The failure of
which Jones accuses Kresic is facially dissimilar from Jones’s failures, and Jones makes no
attempt to show similarity between the two. He also does not attempt to reconcile the fact that
Jones was accused of five different types of failures, in contrast with the single failure of which
he accuses Kresic. The comparison with Luber is stronger in that both are accused of not
responding to calls during on-call duty. But, again, Jones was accused of four other, wholly
different failures in addition to that. As with the Kresic comparison, Jones makes no attempt to
show why Luber’s alleged failure in one area, even if it was a repeated failure, is similar to
Jones’s alleged failures in five. Given these differences, it cannot be inferred that the disciplinary
actions taken against Jones occurred because of racial discrimination. Without such a showing,
Jones cannot make his prima facie case, and the City is entitled to summary judgment on Count
II.
Even if the evidence Jones presents could be said to establish a prima facie case of
discrimination, summary judgment would still be appropriate. The City has presented an
adequate non-discriminatory reason, his alleged failure in multiple performance areas, for
placing Jones on the MIP. Jones therefore would have the burden to show the existence of a
material factual issue as to pretext were use of the whole McDonnell Douglas framework
necessary. This Jones cannot do.
The evidence Jones has presented—again, assuming that it sufficiently makes out a prima
facie case—cannot be said to establish the type of “strong” prima facie case that, coupled only

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with an adequate attack on the veracity of his employer’s proffered reason for discipline, creates
a material fact issue as to pretext. See Torgerson v. City of Rochester, 643 F.3d 1031, 1046
(“Proof of pretext, coupled with a strong prima facie case, may suffice to create a triable question
of fact.”); Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 989 (8th Cir. 2011) (“We have made it
clear that ‘evidence discrediting an employer’s nondiscriminatory explanation is not necessarily
sufficient’ to resist a summary judgment in an employment discrimination case.” (quoting
Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1336 (8th Cir. 1996))). Instead, Jones would need
to present some evidence that the City’s explanation was pretext for discrimination, not merely
that it was false. Tyler, 628 F.3d at 989.
The only evidence of discrimination Jones presents is that the purportedly similarlysituated employees discussed above were treated differently. “At the pretext stage, ‘the test for
determining whether employees are similarly situated to a plaintiff is a rigorous one.’” Bone v.
G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012) (quoting Rodgers v. U.S. Bank, N.A.,
417 F.3d 845, 853 (8th Cir. 2005)). For the comparison to be successful, “the individuals used
for comparison must have dealt with the same supervisor, have been subject to the same
standards, and engaged in the same conduct without any mitigating or distinguishing
circumstances.” Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000).
Jones’s evidence is wholly insufficient to satisfy this rigorous test. As discussed above,
the conduct of which he was accused was not similar in nature or degree to the conduct of which
he accuses Kresic and Luber. Moreover, Jones has presented no evidence that he shared a
supervisor with Kresic or Luber. The record is devoid of information regarding Kresic’s
supervisor. As to Luber, Jones asserts that even though they did not share a direct supervisor,
they both “report to a foreman who reports directly to Roger Sellars.” (Jones Response at 9). The

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Eighth Circuit rejected an almost identical argument in Bone, id. at 956, and Jones makes no
attempt here to distinguish that finding. Thus, even if analysis of Jones’s claims at the pretext
stage were necessary, Jones has not presented sufficient evidence to create a triable factual issue,
and summary judgment would still be appropriate.4
C. Count III
Count III centers primarily on a July 27, 2010 car accident Jones was involved in and the
results of it. “During the afternoon of July 27, 2010, [Jones] passed out while driving a Cityowned vehicle and had an accident.” (CSF ¶ 84). Jones’s physician determined that this accident
was caused by a hypoglycemic episode. Id. ¶ 85. It was subsequently recommended that Jones
undergo a “fitness for duty” examination. Id. ¶ 88. Jones did so, and the doctor who conducted
the examination, “recommended that [Jones] not be allowed to drive a commercial vehicle,
operate a bucket truck, or work alone.” Id. ¶ 91. Jones was then assigned “to the warehouse
where he would not be required to drive for extended distances and periods of time or work
alone on a regular basis.” Id. ¶ 93. After his reassignment, Jones presented two letters to the City
indicating that Jones “could drive and work . . . .” Id. ¶ 94. Since these letters “seemed to be in
conflict” with the earlier fitness-for-duty exam, it was determined that Jones should undergo a
second fitness-for-duty exam. Id. ¶¶ 95-96. Ultimately, however, “the City’s Civil Service
Commission determined the appointing authority did not have the authority to order [Jones] to
attend the examination.” Id. ¶ 97.

It is also not clear that Jones has presented the type of evidence necessary to show that the City’s
explanation was false. To make such a showing, an employee must present evidence “that the employer’s
proffered explanation is unworthy of credence because it has no basis in fact.” Wallace v. DTG
Operations, Inc., 442 F.3d 1112, 1120 (8th Cir. 2006) (internal citation and quotation marks omitted).
Jones’s rebuttals of the City’s facts generally involve an admission that a particular event occurred,
followed by an elaboration of or alternative explanation for that event. (See, e.g., Jones Aff. ¶¶ 19, 21,
28). It would therefore be difficult to conclude that Jones has shown the City’s proffered rationale to have
no factual basis.
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The City contends it is not necessary to analyze Count III under the McDonnell Douglas
framework because Jones failed to exhaust his administrative remedies with regard to the
discrimination claims in that count. (City Support Memo at 3-4). This is so, according to the
City, because Jones did not mention either the fitness-for-duty examination, which was preceded
by a rejection of Jones’s physician note, or the warehouse reassignment either in his original
EEOC Charge of Discrimination or in his Amended Charge. Id. at 4. Jones responds that, while
he did not expressly mention these actions, he did mention in his Amended Charge the City’s
refusal to accept a note from Jones’s health care provider that Jones was ready to return to work
after the extended sick leave discussed in Count I. (Jones Response at 3-4). “Thus, Jones alleges
in Count III a second instance of the same kind of discrimination—rejection of a physician’s
statement—as he alleges in the amended charge . . . .” Id. at 4. The actions in Count III could
therefore be said to have grown out of the earlier actions, and Jones did not fail to exhaust his
administrative remedies. Id.
Timely filing of a charge of discrimination with the EEOC “is a prerequisite to the later
commencement of a civil action in federal court similar in nature to a statute of limitations.”
Cobb v. Stringer, 850 F.2d 356, 358 (8th Cir. 1988). The scope of the civil action need not be
“confined to the specific allegations in the charge . . . .” E.E.O.C. v. Delight Wholesale Co., 973
F.2d 664, 668 (8th Cir. 1992). Instead, the complaint in the civil action may include allegations,
including of discriminatory acts that occurred after the filing of the original charge, that “are like
or reasonably related to the administrative charges that were timely brought.” Wedow v. Kansas
City, Mo., 442 F.3d 661, 672 (8th Cir. 2006) (quoting Anderson v. Block, 807 F.2d 145, 148 (8th
Cir. 1986)).

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The application of this standard has been narrower than the language might indicate.
While subsequently-occurring discriminatory actions not expressly included in a charge of
discrimination can be part of a civil complaint when they are similar in nature to a type of
ongoing discrimination, wholly distinct acts of discrimination must be raised in a separate EEOC
charge. See id. at 672-75. For instance, when an EEOC charge complains “of a single incident
that occurred on a specific day[,]” id. at 675 (citing Parisi v. Boeing Co., 400 F.3d 583, 585 (8th
Cir. 2005)), or “of acts within a specific limited time period[,]” id. (citing Shelton v. Boeing Co.,
399 F.3d 909, 912-13 (8th Cir. 2005)), a subsequently-occurring discrete action cannot be said to
fit within the scope of the original charge such that the plaintiff’s administrative remedies have
been exhausted in relation to that action.
Jones’s Amended Charge states the following:
I am employed with [the City] as an Electrician. On 08/03/09 I received my
Employee Service Rating for the period ending 06/06/09. I also received a
thirteen (13) week mandatory improvement plan and my salary was reduced
by 10%. Additionally, although requested, I was not provided current
standards of performance. I had been returned to work on 07/13/09. When I
presented my return to work letter, I was informed that the statement was
insufficient because the doctor did not state whether or not I had
restrictions. On 07/14/09 I was allowed to work my shift after presenting a
revised doctor’s statement. At the end of the day I was told that I was not
allowed to return to work until I got a release from my doctor who was
treating my disability. I believe that I received a low evaluation. My pay
was reduced and my doctor’s note was not accepted due to my race, African
American and due to my disabilities/perceived disabled.
(Amended Charge, ECF No. 85-12). In short, Jones alleged that specific discriminatory actions
occurred on specific dates and makes no allegation that such actions were ongoing.
Jones’s attempt to connect those allegations with the allegations made in Count III of his
Complaint therefore must fail. Jones is correct that both incidents involve the rejection of a
physician’s note. But that is where the similarity ends. The alleged events in Count III transpired

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more than a year after the events alleged in the Amended Charge. They also relate to an entirely
different series of occurrences. Jones makes allegations in the Amended Charge about the City’s
refusal to accept a doctor’s note after he took sick leave in relation to the alleged attempt to fire
him described in Count I. In Count III, the City’s refusal of Jones’s doctor’s note followed an
accident Jones caused after he passed out while driving. If there is any connection between these
claims of discrimination, it is too attenuated to conclude that Jones exhausted his administrative
remedies with regard to the allegations in Count III despite the fact that he did not file a new
EEOC charge containing those allegations. Summary judgment must therefore be granted in the
City’s favor on this count.

Accordingly,
IT IS HEREBY ORDERED that Defendant City of St. Louis, Missouri’s Motion for
Summary Judgment, (ECF No. 85), is GRANTED, and Plaintiff Keith Jones’s Third Amended
Complaint, (ECF No. 79), is DISMISSED WITH PREJUDICE. A separate Judgment will
accompany this Memorandum and Order.

Dated this 11th Day of May, 2015.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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